INDIAN LAW - INDIAN TRIBES HAVE NO INHERENT AUTHORITY TO EXERCISE CRIMINAL JURISDICTION OVER NON-INDIANS VIOLATING TRIBAL CRIMINAL LAWS WITHIN RESERVATION BOUNDARIES OLIPHANT V SUQUAMISH INDIAN TRIBE, 435 US 191 (1978)

• NCJ Number: 66089
• Journal: Catholic University Law Review Volume: 28 Dated: (SPRING 1979) Pages: 663-687
• Author(s): C G BERKEY
• Date Published: 1977
• Length: 25 pages
• Corporate Author: Catholic University of America
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

INDIAN SOVEREIGNTY IS DISCUSSED IN VIEW OF THE 1978 SUPREME COURT DECISION IN OLIPHANT V. SUQUAMISH INDIAN TRIBE WHICH HELD THAT INDIAN COURTS HAVE NO AUTHORITY TO PUNISH NON-INDIANS COMMITTING CRIMES ON RESERVATIONS.

Abstract

THE CONTROVERSY CULMINATING IN OLIPHANT BEGAN IN 1973 WHEN THE SUQUAMISH TRIBE IN WASHINGTON ENACTED A LAW-AND-ORDER CODE THAT EXTENDED CRIMINAL JURISDICTION OVER NON-INDIANS. TRIBAL POLICE OFFICERS IN 1973 AND 1974 THEN ARRESTED TWO NON-INDIAN RESIDENTS OF THE RESERVATION FOR ASSAULT AND FOR RECKLESSLY ENDANGERING ANOTHER PERSON. THE SUPREME COURT REVERSED THE DECISION OF THE COURT OF APPEALS IN THIS CASE AND FOUND THAT THE TRIBAL COURT POSSESSED NO INHERENT POWER TO TRY AND PUNISH NON-INDIANS VIOLATORS OF TRIBAL CRIMINAL LAWS. THE COURT CONCLUDED THAT JURISDICTION OVER NON-INDIANS COULD NOT BE ASSUMED WITHOUT SPECIFIC CONGRESSIONAL AUTHORIZATION. HISTORICALLY, AMERICAN COURTS HAVE CONSISTENTLY RECOGNIZED THE INHERENT AND RESIDUAL SOVEREIGNTY OF INDIAN TRIBES OVER THEIR PEOPLE AND TERRITORY. IN OLIPHANT, THE COURT LARGELY IGNORED THIS WELL-ESTABLISHED BODY OF CASE LAW AND UNDERMINED TRADITIONAL PRINCIPLES OF JUDICIAL DECISIONMAKING. THE COURT RESTED ITS OPINION ON THE WEAKEST OF PRECEDENTS, IGNORED LEGISLATIVE MATERIALS INCONSISTENT WITH ITS CONCLUSIONS, AND FAILED TO APPLY WELL-ESTABLISHED RULES OF TREATY INTERPRETATION. HOWEVER, OLIPHANT DOES NOT PRECLUDE THE EXERCISE OF SOVEREIGN POWER BY INDIAN TRIBES OVER THEIR OWN MEMBERS AND THE EXERCISE OF CIVIL JURISDICTION OVER RESERVATION TERRITORY. INDIAN TRIBES WILL CONTINUE TO RETAIN ALL SOVEREIGN POWERS NOT RELINQUISHED BY TREATY, TAKEN AWAY BY CONGRESS, OR FOUND BY COURTS TO BE INCONSISTENT WITH THEIR STATUS. NEVERTHELESS, THE COURT'S HOLDING IN OLIPHANT PLACES SEVERE LEGAL RESTRICTION ON INDIAN SOVEREIGNTY AND RAISES THE POSSIBILTY OF FURTHER JUDICIAL EROSION OF INDIAN RIGHTS. FOOTNOTES ARE INCLUDED. (WJR)